Citation Nr: 1145560
Decision Date: 12/14/11 Archive Date: 12/21/11
DOCKET NO. 09-03 334A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Honolulu, Hawaii
THE ISSUES
1. Entitlement to an evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD).
2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to a service-connected disability.
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
David Traskey, Counsel
INTRODUCTION
The Veteran had active service from May 1967 to November 1970.
This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of November 2007 by the Department of Veterans Affairs (VA) Honolulu, Hawaii, Regional Office (RO).
The Veteran requested a Travel Board hearing in connection with the current claim. The hearing was scheduled and held in May 2011. The Veteran testified before the undersigned Veterans Law Judge (VLJ) and the hearing transcript is of record. The Veteran submitted additional evidence pertinent to his claim following the hearing. The submission of this evidence was accompanied by a waiver of RO jurisdiction.
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required.
REMAND
I. PTSD
The Veteran contends that his service-connected PTSD has gotten worse and that this decline warrants a higher disability evaluation. By way of history, the RO granted service connection for PTSD in a rating decision dated July 2004 and evaluated this disability as 30 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9411, effective February 12, 2003. The Veteran was notified of this decision and provided his appellate rights, but did not appeal. The Veteran filed the current increased rating claim in September 2006. The RO increased the Veteran's disability evaluation for his service-connected PTSD to 50 percent under Diagnostic Code 9411, effective September 14, 2006. See November 2007 rating decision. The Veteran was notified of this decision, provided his appellate rights, and perfected this appeal.
Preliminarily, the Veteran testified in May 2011 that he received Social Security Administration benefits. It is unclear, however, whether the Veteran receives these benefits as a result of his age or as a consequence of disability. However, the Veteran stated that he "retired on Social Security" due to PTSD. See hearing transcript, pp. 14-16. Accordingly, the RO/AMC should contact Social Security Administration on remand to obtain a complete copy of any and all adjudications and the records underlying the adjudications for SSA disability benefits. If no such records exist, information to that effect should be included in the claims file and the Veteran should be notified.
VA also has a duty to assist veterans to obtain evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 § C.F.R. § 3.159 (2011). This duty to assist includes providing a thorough and contemporaneous medical examination. Green v. Derwinski, 1 Vet. App. 121, 124 (1991).
The Veteran was most recently afforded a VA Compensation and Pension (C&P) psychiatric examination in August 2010. He reported subjective complaints of nightmares (twice weekly), daily intrusive thoughts, occasional flashbacks, avoidant behavior, social detachment and isolation, diminished interest in activities, impaired sleep and concentration, irritability, hypervigilance, and occasional exaggerated startle response. It was also noted that the Veteran was unemployed. A mental status examination found no evidence of impaired thought process or concentration, delusions or hallucinations, inappropriate behavior, suicidal or homicidal thoughts, ideations, plans or intent, panic attacks, or memory loss or impairment. The Veteran was able to maintain minimal personal hygiene and was oriented to person, place, and time. He had normal speech, but was engaged in obsessive or ritualistic "checking behavior," and showed evidence of nightly impaired sleep, moderately depressed mood, moderate anxiety, moderate occupational impairment, and reduced reliability and productivity. The Veteran's GAF score was 65. The diagnosis was PTSD.
In May 2011, the Veteran's treating psychiatrist submitted a statement in support of the Veteran's claim in which she expressed the opinion that the Veteran's GAF score ranged from 50 to 60 (and that the recent GAF score of 65 was overstated). According to the psychiatrist, the Veteran's GAF scores reflected that he might have difficulty in social situations and work environments (with associated conflicts and withdrawal). However, the psychiatrist noted that the Veteran's symptoms were not severe enough to warrant hospitalization. Also included in the claims file is a statement from this psychiatrist dated August 2010 in which she requested that the Veteran be excused from jury duty due to his inability to "handle the stress." The psychiatrist described the Veteran as "permanently disabled," and requested that he be removed from further consideration as a juror, if possible.
The Veteran testified in support of his claim in May 2011 and alleged that the severity of his PTSD symptoms increased. For instance, the Veteran reported subjective complaints of relationship difficulties with his girlfriend, hypervigilant behavior (including walking his property and sitting in a chair under his carport throughout the night), increased sleeplessness and flashbacks, poor concentration and disorientation, and conflict with supervisors and co-workers.
VA must provide a new examination when a Veteran claims that a disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current state of the condition. See Olson v. Principi, 3 Vet. App. 480, 482 (1992) (citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992)). Pertinent medical evidence bearing on the severity of his disability has been received since the August 2010 VA C&P examination; therefore, the Veteran should be provided a new VA examination to ascertain the nature and severity of his service-connected PTSD.
VA is also required to make reasonable efforts to help the Veteran obtain records relevant to his claim, whether or not the records are in Federal custody. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2011); Bell v. Derwinski, 2 Vet. App. 611 (1992). The evidence of record reflects that the Veteran receives VA treatment. Therefore, the RO/AMC should request all VA medical records pertaining to the Veteran from February 23, 2011. In addition, the Veteran should be contacted on remand and asked to identify any and all non-VA sources of treatment for the disability at issue that are not already of record.
II. TDIU
With respect to the TDIU claim, the Board notes that there was confusion on the Veteran's part as to whether this issue was still on appeal. The RO denied the claim of entitlement to TDIU in the November 2007 rating decision currently on appeal. The Veteran filed a timely notice of disagreement in December 2007 and the RO issued a statement of the case in January 2009. The Veteran submitted a substantive appeal in February 2009 in which he indicated intent to continue his appeal only on the increased rating claim for PTSD. However, the RO subsequently issued a supplemental statement of the case in August 2009 which addressed the issue of entitlement to TDIU. Thereafter, the RO sent a letter to the Veteran dated May 2010 in which he was advised that the August 2009 supplemental statement of the case erroneously included discussion of his TDIU claim. Although the RO described the Veteran's claim of entitlement to TDIU as "withdrawn" in the May 2010 letter, the Veteran's representative nevertheless elicited testimony in May 2011 regarding the Veteran's unemployability and expressed the opinion that the claim of entitlement to TDIU remained on appeal. Based on the forgoing, the Board finds that the issue of entitlement to TDIU remains on appeal.
The Board further finds that the issue of entitlement to TDIU is inextricably intertwined with the Veteran's increased rating claim for PTSD. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (noting that two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Moreover, the Veteran should be afforded a VA examination on remand to determine whether he is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability.
Accordingly, the case is REMANDED for the following action:
1. Contact the Veteran and request that he identify any and all non-VA sources of treatment for his service-connected PTSD that is not already of record. The RO/AMC should notify the Veteran pursuant to 38 C.F.R. § 3.159(e) if these records cannot be obtained.
2. Associate with the claims file relevant VA medical treatment records pertaining to the Veteran from February 23, 2011. If there are no VA medical records dated after February 23, 2011, this finding should be documented in the claims folder.
3. Contact the Social Security Administration and request a complete copy of any and all adjudications and the records underlying the adjudications for SSA disability benefits. All efforts to obtain these records should be fully documented. The RO/AMC should notify the Veteran pursuant to 38 C.F.R. § 3.159(e) if these records cannot be obtained.
4. After all of the above development is completed, schedule the Veteran for a VA psychiatric examination to determine the nature and severity of his service-connected PTSD. The claims folder and a copy of this remand must be made available to the examiner. The examiner should note in the examination report that the claims file has been reviewed. Any appropriate evaluations, studies, and testing deemed necessary should be conducted at this time, and included in the examination report.
In particular, the examiner should comment on the presence or absence and the frequency or severity of the Veteran's symptoms due to PTSD. The examiner is asked to indicate the extent to which the Veteran's service-connected PTSD has resulted in (A) occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood; and/or (B) total occupational and social impairment due to symptoms such as: suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately, or effectively; impaired impulse control, such as unprovoked irritability with periods of violence; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances, including work or a work-like setting; the inability to establish and maintain effective relationships; gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living, including maintenance of minimal person hygiene; disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. The examiner should also provide a complete multiaxial evaluation, and assign a Global Assessment of Functioning (GAF) score together with an explanation of what the score represents in terms of the Veteran's psychological, social, and occupational functioning. The examiner must provide a complete rationale for any stated opinion.
The examiner should also elicit from the Veteran and record for clinical purposes a full work and educational history. The examiner is asked to provide an opinion as to whether the Veteran is unable to secure or follow a substantially gainful occupation due solely to his service-connected disabilities (which include PTSD and tinnitus). In providing the opinion, the Veteran's work experience and education should be considered, but his age and non-service-connected conditions may not be considered. The examiner must provide a complete rationale for any stated opinion.
5. If the examiner is unable to provide the requested opinion without resorting to speculation, the examiner must provide an explanation for the basis of that determination. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). The United States Court of Appeals for Veterans Claims stated in Jones that the phrase "without resort to speculation" should reflect the limitations of the medical community at large and not those of a particular examiner/reviewer. Id.
6. After the requested examination has been completed, the report should be reviewed to ensure that it is in complete compliance with the directives of this remand. The examination report should be returned to the examiner if it is deficient in any manner.
7. Thereafter, ensure that the development above has been completed in accordance with the remand instructions, undertake any other development action that is deemed warranted, and readjudicate the Veteran's claims. If, in the course of adjudicating the claim of TDIU, the RO/AMC finds that the Veteran does not meet the rating criteria under 38 C.F.R. § 4.16(a), but his service-connected disabilities prevent him from following a substantially gainful occupation, the RO/AMC should refer the appeal to the Chief Benefits Director or the Director, Compensation and Pension Service, for extraschedular consideration. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board.
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).
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STEVEN L. COHN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011).